* They cite Sections 76 (1) and (2) (d) and (e) of the Constitution; 8 (1) (i) and (m) of the Electoral Commission Act, Cap 2:03 of the Laws of Malawi;
* And Sections 83 (1), 92, 93 and 95 (1) and (2) of the Presidential, Parliamentary and Local Government Elections Act, 2023
By Duncan Mlanjira
The High Court has granted a judicial review to the Democratic Progressive Party (DPP), UTM Party and five other individuals against the decision by the Malawi Electoral Commission (MEC) to refuse them an audit of the electoral process and the use of the electronic management system for the September 16 general elections.
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The five individuals joining the two political parties are Member of Parliament (MP) Kamlepo Kalua, Luther Mambala, Bishop Chimwemwe Mtawali, evangelist Stevie Chimwaza and Jubeck Monjeza.
They cite Sections 76 (1) and (2) (d) and (e) of the Constitution; 8 (1) (i) and (m) of the Electoral Commission Act, Cap 2:03 of the Laws of Malawi; and Sections 83 (1), 92, 93 and 95 (1) and (2) of the Presidential, Parliamentary and Local Government Elections Act, 2023.
The concerned parties argues against MEC’s decision to implement the electoral management device (EMD) as a means of identifying voters and to determine national results transmitted by the EMD for the tripartite elections.
The High Court asks that the hearing should be expedited to allow the Court to determine the matter before election date, which is 63 days to go as of today.
The applicants and MEC have also been being ordered that they should “strictly comply rules of Civil Procedure in dealing with the matter”.
At the meeting with all the 24 registered political parties and representatives of aspiring independent candidates held on Saturday in Lilongwe, MEC chairperson, Justice Annabel Mtalimanja reported that political parties never responded to MEC’s explanation as regards to the independent audit of the election management system.
The chairperson appraised the gathering that during a previous engagement, MEC acknowledged receiving Concept Note and Scope of the Independent Audit of MEC’s election management system (the Scope) — which was jointly presented by the DPP, UTM, Alliance for Democracy (AFORD), United Democratic Front (UDF) and Peoples Party (PP).
She reiterated that MEC responded to the demand for the audit of its Scope, which was sent to the concerned political partes directly — but as of Saturday, MEC had “not received any follow-up reply to the response which made it necessary to conclude that the political parties considered the merits of the Commission’s decision”.
“Considering that the matter concerning the audit of its election management system EMS has continued to attract public attention and has actually been a cause for violent demonstrations”, Justice Mtalimanja emphasised that the decision to dismiss the demand for the audit “was based on a careful review and extensive technical, legal, and operational analysis”.
She emphasised that MEC “has been deliberate and forthcoming in providing relevant data, statistics and information including duplicate entries and photographic anomalies, which were flagged and disclosed to political parties by the Commission itself during stakeholder consultations”.
She thus reiterated that in its report to the National Elections Consultative Forum (NECOF) on April 30, MEC “made it clear that a demand for EMS audit must be based on a clearly defined scope and anchored on specific irregularities or anomalies observed”.
The gathering in Lilongwe on Saturday
She indicated that the Scope MEC received “did not point to any irregularities in MEC’s processes occasioned by the EMS [as it] resembled a structured forensic investigation rather than a professional ICT assurance review exercise”.
“The Scope presumed irregularities or systemic failure without presenting any evidence of such. Moreover, the Scope contains numerous technical misconceptions — for example:
* It referred to technologies and processes such as automated polling stations, electronic voting and automated vote counting, that the Commission has, on numerous occasions, stated are not part of the 2025 General Election electoral process.
* These elements are not components or modules of the current EMS configuration in use by the Commission. The analysis conducted by the Commission revealed that the said technologies and processes were drawn from generic documentation on Smartmatic systems or practices.
* However, stakeholders are aware that the Commission’s EMS is custom developed in all aspects, including the Election Management Devices.”
She further explained that the Scope was proposing an audit process which was seeking access to and scrutiny MEC’s core systems and infrastructure “in a
manner that would compromise the system security, institutional control, and the Commission’s ability to safeguard the integrity of the electoral process.
“The Commission communicated a view that to allow such an audit would be setting a dangerous precedent suggesting that a stakeholder can set aside or usurp the Commission’s constitutional and legal independence.
She emphasised that MEC further referred to section 76 (4) of the Constitution which mandates the pollster “to exercise its powers, functions, and duties independent of any direction or interference by any other authority or person”.
“Additionally, under section 76 (2) (c) and (d) of the Constitution, the Commission is bestowed with the following duties:
(i) to determine electoral petitions and complaints related to the conduct
of any elections; and
(ii) to ensure compliance with the provisions of the Constitution and any Act of Parliament.
“The Commission was not presented with any petition alleging any irregularities in the electoral processes that have been implemented so far. There is no statutory or legal authority to mandate the Commission to submit to an externally imposed audit of its internal systems without it being based on a complaint or petition alleging irregularities or other illegalities in the Commission’s electoral processes.
“It is on the basis of the foregoing that the Commission decided not to proceed with, nor approve, the proposed audit,” emphasised the High Court Judge.
On MEC decisions, Justice Mtalimanja highlighted that they are collectively — stressing that the chairperson, the Commissioners or the Chief Elections Officer “do not make decisions on any election matter independent of the Commission as a board”.
The chairperson and the Commissioners
“Further, the Commission would like to highlight and make it clear that political parties and all other electoral stakeholders have a remedy in the law if they are of the view that the Commission is exercising its powers and functions unlawfully or overstepping its legal mandate.
“If a political party or candidate is of view that the Commission is in breach of the law, they have the right to petition the Commission or to apply to the High Court for a judicial review of the Commission exercise of its powers under the Constitution and Acts of Parliament.
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“This right is provided under section 76 (5) (a) which states that — ‘the High Court shall have jurisdiction to entertain applications for judicial review of the exercise by the Malawi Electoral Commission of its powers and functions to ensure that such powers and functions were duly exercised in accordance with this Constitution or any Act of Parliament’.
“Therefore, the Commission would like to urge all stakeholders that this remedy is available and offers a more cogent way of establishing the legality or lack of it in all the decisions which have so far been made by the Commission,” said the High Court Justice.
